MOSTERD v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 31462/96

                      by Jan MOSTERD

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

           Mrs   G.H. THUNE, President

           MM    J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           Ms    M.-T. SCHOEPFER, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 11 December 1995

by Jan MOSTERD against the Netherlands and registered on 13 May 1996

under file No. 31462/96;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Dutch national, born in 1946, and resides in

Maasland, the Netherlands. He is a cattle trader. In the proceedings

before the Commission he is represented by Mr L.J.L. Heukels, a lawyer

practising in Haarlem.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

a.   Particular circumstances of the present case

     On 2 October 1992, the Office of the General Inspection

Department (Algemene Inspectiedienst, hereinafter referred to as "AID")

of the Ministry of Agriculture, Nature Management and Fisheries

(Ministerie van Landbouw, Natuurbeheer en Visserij) in Alphen aan den

Rijn received an anonymous phone call in which suspicions against the

applicant were expressed in respect of the way cows were fattened on

his premises.

     On 6 October 1992, AID officials carried out an orientation visit

to the applicant's premises. Since it was not possible to observe these

premises from a distance and as the information provided by the

anonymous informer indicated that forbidden substances were being

administered to the cows on the applicant's premises, the officials

proposed the public prosecutor to carry out an investigation by taking

urine samples of cows present on these premises and to issue an interim

measure (voorlopige maatregel) pursuant to Article 28 of the Act on

Economic Offences (Wet op de Economische Delicten) in order to prevent

that, after the taking of samples, the cows concerned were transported

to an unknown address or were slaughtered.

     On 16 November 1992, four AID officials, holding the status of

special civil servants of the national police (onbezoldigd ambtenaar

van het Korps Rijkspolitie), inspected the applicant's premises.

According to the officials' minutes on findings (proces-verbaal van

bevindingen), they presented themselves to the applicant and informed

him of the reasons for their visit. When asked, the applicant stated

that he had no objections against an inspection by the AID officials

of possible presence of veterinarian drugs on his premises. In the

applicant's presence, samples of certain veterinarian drugs found, food

samples and urine samples of ten cows were taken. These samples were

wrapped, stamped and officially sealed. The applicant was provided with

a formal list of seal numbers.

     On the same day, the urine samples and counter samples were sent

for tests for substances with sympathico mimetic or hormonal effects

(stoffen met sympathico mimetische of hormonale werking) to the

Netherlands State Institute for the Quality of Agricultural and

Horticultural Products (Rijkskwaliteitsinstituut voor Land- en

Tuinbouwproducten). Also on 16 November 1992, the public prosecutor

issued an interim measure under Article 28 of the Act on Economic

Offences in respect of the cows of which samples had been taken. The

samples of the veterinarian drugs found were sent for testing to the

Netherlands State Institute for Drugs Examination (Rijksinstituut voor

Geneesmiddelenonderzoek).

     On 3 December 1992, the AID informed the applicant that the urine

samples taken on 16 November 1992 had been tested and found positive

for clenbuterol, a substance with sympathico mimetic effects. On the

same day the AID seized (inbeslagname) the ten cows from which urine

samples had been taken. The seized animals were left in the applicant's

care.

     On 28 December 1992, the applicant informed the AID that one of

the seized cows had died. After an AID official has seen and identified

the cow by its earmark, the animal was taken away for destruction.

Following consultations with the public prosecutor, the remaining nine

cows were transported on 8 January 1993 from the applicant's premises

to another location.

     On 6 January 1993, the AID received the test results of the food

samples taken at the applicant's premises. They had been tested and

found negative for, inter alia, clenbuterol.

     By two separate summonses, the applicant was subsequently ordered

to appear before the Magistrate for economic matters (economische

politierechter) of the Regional Court (Arrondissementsrechtbank) of

Rotterdam for offences under Article 2 of the Decree on chemicals with

sympathico mimetic effects (Verordening stoffen met sympathico

mimetische werking, hereinafter referred to as "Decree") and offences

under the Act on veterinarian drugs (Diergeneesmiddelenwet, hereinafter

referred to as "DGW"), respectively.

     Adversarial proceedings took place before the Magistrate, in the

course of which hearings were held on 6 April, 3 June and 14 June 1993.

Before the Magistrate evidence was taken from the applicant and two

expert-witnesses: an AID official and a university teacher/pharmacist.

The expert-witness stated, inter alia, that the use of clenbuterol is

only allowed for treatment of animals kept for reproduction purposes

and only if the life of a sick animal is threatened. He further stated

that the consumption of beef containing clenbuterol may have harmful

effects for human beings.

     By judgment of 14 June 1993, the Magistrate convicted the

applicant of having violated the Decree and the DGW. The applicant was

sentenced to payment of ten fines of 1,000 Dutch guilders each and

confiscation (verbeurdverklaring) of the ten cows in respect of the

offences under the Decree and to payment of two fines of 750 Dutch

guilders each and confiscation of several substances found on the

applicant's premises for the offences under the DGW. The applicant

filed an appeal with the Court of Appeal (Gerechtshof) of The Hague.

     On 8 July 1994, a hearing was held before the Court of Appeal.

The Court of Appeal took evidence from the applicant and one of the AID

officials involved in the taking of samples on 16 November 1992.

     In its judgment of 21 July 1994, the Court of Appeal quashed the

Magistrate's judgment of 14 June 1993, declared the summons relating

to the offences under the DGW null and void on technical grounds, found

the applicant guilty of ten offences under the Decree and sentenced him

to payment of ten fines of 1,000 Dutch guilders each and confiscation

of the ten cows.

     As to the argument by the defence that the rules and practices

concerning the treatment of taken samples offered insufficient

guarantees as regards unauthorised access by persons to those samples

between the moment these samples were taken and their receipt at the

test laboratory, the Court of Appeal noted that at the relevant time

there were no national or international rules as to the taking,

wrapping and transporting of samples and counter samples for purposes

of controlling compliance with the Decree. It further noted that the

President of the Commodity Board (Produktschap) had not availed himself

of his competence to issue rules on the taking of samples for these

purposes.

     Insofar as the applicant relied in this respect on the findings

of the European Court in the case of Funke v. France (Eur. Court HR,

Funke v. France judgment of 25 February 1993, Series A no. 256-A), the

Court of Appeal held that that case concerned exclusively guarantees

against interferences with legal objects protected by Article 8 para. 1

of the Convention, which it found not to be at issue in the present

case ("... nu het daarbij uitsluitend ging

om de waarborgen tegen inbreuken op de - in deze zaak niet aan de orde

zijnde - rechtsgoederen beschermd door Artikel 8 lid 1 van het Europees

verdrag...").

     The Court of Appeal considered as decisive whether there was

sufficient certainty that the analysed samples came from the animals

at issue and that nobody had access to the contents of the samples

between their sealing and arrival at the laboratory. The Court of

Appeal found this certainty established by the contents of the means

of evidence used in its judgment. It further considered relevant that

there is a statutory protection against the actions suggested by the

defence (tampering with sealed bags containing samples) as, according

to Article 199 para. 1 of the Criminal Code (Wetboek van Strafrecht),

tampering with official seals constitutes a criminal offence.

     The Court of Appeal further rejected the argument by the defence

that the fair trial requirements under Article 6 para. 1 of the

Convention had not been met as also the counter samples had been

brought to the laboratory together with the samples and had not been

left with the applicant.

     The applicant filed an appeal in cassation with the Supreme Court

(Hoge Raad). He complained, inter alia, that the Court of Appeal's

finding that at the relevant time there were no national or

international rules governing the taking of samples for control as to

compliance with the Decree, that the Court of Appeal had unjustly held

that the European Court's judgment in the case of Funke v. France

concerned exclusively legal objects protected by Article 8 para. 1 of

the Convention which according to the Court of Appeal were not at issue

in the present case, that the Court of Appeal had unjustly rejected the

argument that the evidence had been unlawfully obtained, and that the

applicant's rights under Articles 6 and 8 of the Convention had been

violated given the absence of sufficient guarantees in the law against

abuses in connection with the procedure at issue.

     The Supreme Court rejected the applicant's appeal in cassation

on 3 July 1995. It accepted the Court of Appeal's finding that the

applicant had not submitted any facts or circumstances on grounds of

which it should be held that his rights under Article 8 of the

Convention had been violated and that the failure of the President of

the Commodity Board to issue rules on the taking of samples was not

contrary to Article 8 of the Convention.

     It further accepted the reasons given by the Court of Appeal for

its findings as regards the reliability of the test results it had used

in evidence. The Supreme Court did not find that this reasoning

deprived the applicant of a fair trial within the meaning of Article

6 para. 1 of the Convention. It noted in this context that the

applicant had not submitted on what grounds the investigation in the

present case should be regarded as unreliable and that he had never

requested a counter-expertise.

     Referring to Article 101a of the Judicial Organisation Act (Wet

op de Rechterlijke Organisatie), the Supreme Court further rejected the

remainder of the applicant's appeal in cassation as not prompting a

determination of legal issues in the interest of legal unity and legal

development.

b.   Relevant domestic law

     The possession of cattle to which certain chemicals have been

administered is an offence according to the Decree on chemicals with

sympathico mimetic effects, a regulation referred to in Article 93 of

the Industrial Organisation Act (Wet op de Bedrijfsorganisatie) thus

falling within the scope of the Act on Economic Offences.

     Unless expressly ruled out in the Act on Economic Offences or the

statutory or secondary legislation referred to in Article 1 and

Article 1a of that Act, the provisions of the Code of Criminal

Procedure apply to the criminal investigation of economic offences

(Article 25 of the Code on Economic Offences).

     Article 17 para. 1 of the Act on Economic Offences reads:

     "With the investigation of economic offences are entrusted:

     1.    the civil servants referred to in Article 141 of the Code

     of Criminal Procedure;

     2.    the civil servants appointed by decision, published in the

     Netherlands Official Gazette, of the Minister of Justice in

     agreement with Our other Minister concerned;

     3.    the customs duty and excise tax civil servants."

     Article 141 of the Code of Criminal Procedure, at the relevant

time, read:

     "With the investigation of criminal offences are entrusted:

     1.    the Public Prosecutors;

     2.    the District Court judges in cases, which do not fall

     within their cognizance;

     3.    the mayors in municipalities, where there is no municipal

     police commissioner;

     4.    the civil servants of the National Police Corps and the

     municipal police, with the exception of:

     a.    the paid civil servants in a lower rank than the one

     determined by Our Minister of Justice;

     b.    the civil servants, appointed to perform exclusively

     technical or administrative tasks;

     5.    the commissioners of the national police and the special

     civil servants of the national police;

     6.    for the cases to be determined by Our Ministers of Justice

     and of War: the commissioned and non-commissioned officers of the

     Royal Military Constabulary and the other military of that arm

     as designated by Our afore-mentioned Ministers;

     7.    the civil servants of the National Police Corps and the

     municipal police, designated by Our Minister of Justice,  who

     have been appointed within the regular framework and

     classification of ranks to perform exclusively technical or

     administrative tasks."

     Article 12 of the Constitution provides:

     "1.   Entering a home against the will of the occupant is only

     allowed in cases prescribed by law, by those persons authorised

     thereto by law.

     2.    Apart from exceptions prescribed by law, prior

     identification and information as to the purpose of entering are

     required before entering in accordance with the previous

     paragraph. The occupant shall be provided with a written report

     on the entry."

     Article 12 para. 1 of the Constitution implies that an occupant

must clearly state that he or she objects to an entry by investigation

officials for investigation purposes (Hoge Raad, 10 april 1979,

Nederlandse Jurisprudentie 1979, nr. 483; and Hoge Raad, 19 februari

1985, Nederlandse Jurisprudentie 1985, nr. 691).

     Where an occupant has no objections against an entry of his or

her home by investigating officials for investigation purposes no

written warrant is required.

     Pursuant to Article 20 of the Act on Economic Offences,

investigating officials have access to any place, insofar as this is

reasonably required for the fulfilment of their duties. According to

paragraph 2 of this provision, investigating officers shall only enter

homes against the will of the occupant in cases of investigation of an

economic offence and accompanied by a police commissioner or the local

Mayor, or on the basis of a written warrant issued by the prosecution

department.

     According to Article 20 para. 3 of the Act on Economic Offences,

formal minutes (proces-verbaal) of an entry and investigation of

premises against the will of the occupant shall be made within

48 hours, which shall be communicated to the public prosecutor.

     Under Article 21 of the Act on Economic Offences, investigating

officials are competent to take samples of goods present on places, to

which they have access under the terms of the Act on Economic Offences.

If thereto requested, the holder of such goods is obliged to lend them

the necessary assistance.

     Article 28 para. 1 of the Act on Economic Offences provides for

interim measures to be taken by the public prosecutor in cases where

serious objections (ernstige bezwaren) against the accused have been

raised and where the interests protected by the allegedly violated

provision require immediate action.

     An interim measure may consist of an order to refrain from

certain acts (Article 28 para. 1.a) and of an order to ensure that

certain specified goods, which are liable for seizure, are stored and

kept at a specified place (Article 28 para. 1.b).

     According to Article 99 of the Judicial Organisation Act an

appeal in cassation is limited to points of law and procedural

conformity.

     Article 101a of the Judicial Organisation Act reads:

(Translation)

     "If the Supreme Court considers that a complaint submitted cannot

     lead to cassation and does not prompt a determination of legal

     issues in the interest of legal unity and legal development, it

     can limit itself to this finding when giving the reasons of its

     decision on that point."

COMPLAINTS

1.   The applicant complains under Article 8 of the Convention that

the AID officials entered and searched his premises in violation of

Article 8 of the Convention in that this took place on the sole basis

of Article 20 of the Act on Economic Offences without a prior judicial

warrant and in the absence of any judicial authority.

2.   The applicant further complains under Article 8 of the Convention

that the working methods applied by the AID officials in obtaining

urine samples and the way in which these samples were subsequently

handled was unlawful, in that this handling fell short of the

requirements of Article 8 para. 2, in particular in that it was not in

conformity with the EEC Council Directives 67/371 and 85/591, Article 4

of the EEC Council Directive 86/469 and the EEC Commission's decision

87/410, and in that no counter-samples were left in the hands of the

applicant.

3.   The applicant complains under Article 6 of the Convention that

the Supreme Court rejected part of his appeal in cassation, including

an argument under Article 8 of the Convention, under Article 101a of

the Judicial Organisation Act without giving further reasons.

THE LAW

1.   The applicant complains under Article 8 (Art. 8) of the

Convention that the AID officials entered and searched his premises in

violation of Article 8 (Art. 8) of the Convention.

     Article 8 (Art. 8) of the Convention reads as follows:

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.    There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

     The Commission notes that this particular complaint, which

concerns the entry and search of the applicant's premises as such, was

not raised when the applicant introduced his application with the

Commission by letter dated 11 December 1995, but was raised for the

first time in the applicant's second letter to the Commission of

12 February 1996.

     The complaints under Article 8 (Art. 8) of the Convention which

the applicant initially submitted to the Commission in his letter of

11 December 1995  all concerned the alleged lack of adequate safeguards

against tampering with sealed samples taken for investigation purposes

and the allegedly unjust rejection by the Dutch courts of the arguments

put forward by the defence as regards the applicability or

interpretation of certain rules emanating from European Union

institutions.

     The question therefore arises whether the complaint on the

compatibility with Article 8 (Art. 8) of the entry and search of the

applicant's premises has been brought within the six months' time-limit

referred to in Article 26 (Art. 26) of the Convention.

     The Commission recalls that the question whether allegations

submitted after the introduction of an application comply with the six

months rule depends upon whether those allegations should be regarded

as legal submissions in support of the original complaints or as fresh

complaints (cf. No. 18660/91, Dec. 7.12.94, D.R. 79, p. 11).

     The Commission further notes that in the domestic proceedings the

applicant has not complained about the lawfulness of the entry and

search, as such, by the AID officials. In particular, no complaint

relating to the alleged absence of a prior authorisation or absence of

any judicial officer at the time the AID officials entered the

applicant's premises has been submitted to the national judicial

authorities. Insofar as the applicant raised complaints under Article 8

(Art. 8) of the Convention, the Commission finds that they were all

related to the working methods applied in obtaining samples and not to

the legal basis for the AID officials' entry and search. The question

therefore also arises whether in this respect the applicant has duly

exhausted domestic remedies within the meaning of Article 26 (Art. 26)

of the Convention (cf. No. 15669/89, Dec. 28.6.93, D.R. 75, p. 39).

     However, the Commission does not find it necessary to determine

these issues as this complaint is in any event manifestly ill-founded

for the following reasons.

     The Commission accepts that the entering of the applicant's

premises by AID officials constitutes an interference with the

applicant's rights under Article 8 para. 1 (Art. 8-1) of the Convention

(cf. Eur. Court HR, Funke v. France judgment of 25 February 1993,

Series A no. 256-A, p. 22, para. 48; and No. 15882/89, Dec. 29.3.93,

D.R. 74, p. 48). The question thus arises whether this interference can

be regarded as justified under Article 8 para. 2 (Art. 8-2) of the

Convention.

     The Commission recalls that the words "in accordance with the

law" in Article 8 para. 2 (Art. 8-2) refer essentially to domestic law,

which is primarily for the national authorities to apply and interpret,

but also subject to a limited jurisdiction of the Convention

institutions as to the manner in which this is done. The relevant

domestic rules must further be sufficiently accessible and precise (cf.

Eur. Court HR, Kruslin and Huvig v. France judgments of 24 April 1990,

Series A nos. 176-A and B, pp. 20, 23, paras. 27, 33 and pp. 52, 55,

paras. 26, 32 respectively; No. 17441/90, Dec. 4.9.92, D.R. 73, p. 201;

No. 21482/93, Dec. 27.6.94, D.R. 78, p. 119 and No. 21207/93,

Dec. 30.11.94, D.R. 79, p. 31).

     The Commission notes that, in the Netherlands, the entry of

private premises, against the will of the occupant, by investigating

officials for the investigation of economic or other offences is

subject to a number of clear conditions prescribed by statutory rules

setting out the scope and procedures for the exercise of these powers.

     The Commission does not find it established that these conditions

were not respected in the present case. The Commission, therefore,

accepts that the interference at issue was "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

     The Commission further notes that the entry at issue occurred on

the basis of suspicions of economic offences and, therefore, can be

reasonably be regarded as necessary in a democratic society for the

legitimate aim of prevention of crime or protection of health mentioned

in paragraph 2 of Article 8 (Art. 8-2).

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.   The applicant further complains that the way in which the samples

taken by the General Inspection Service were subsequently handled was

contrary to Article 8 (Art. 8) of the Convention.

     The Commission notes that this complaint does not concern the

lawfulness of the entry and search carried out by AID officials on

16 December 1992, but is a complaint that the evidence taken by the AID

officials on that occasion was not handled according to a procedure

containing sufficient statutory guarantees against tampering as can be

inferred from certain international regulations.

     The Commission considers that the questions relating to the

admissibility, reliability and credibility of evidence in criminal

proceedings is to be considered under Article 6 (Art. 6) of the

Convention as relating to the fairness of criminal proceedings (cf.

Eur. Court HR, Delta v. France judgment of 19 December 1990, Series A

no. 191). It is not a matter which falls within the scope of Article

8 (Art. 8) of the Convention, unless the way in which it has been taken

affects private and family life, home or correspondence within the

meaning of Article 8 (Art. 8) of the Convention. This complaint was,

however, found to be manifestly ill-founded (see under 1).

     The Commission does not find that the way in which the urine

samples of cows on the applicant's premises were processed after they

had been taken from the animals constituted an interference with the

applicant's rights guaranteed by Article 8 (Art. 8) of the Convention.

     The question whether or not the Dutch courts' findings in the

present case as regards the applicability of certain national or

international rules and the conformity of the facts at issue with these

rules are correct is not a matter which the Commission can review under

the terms of Article 19 (Art. 19) of the Convention.

     It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.   The applicant complains under Article 6 (Art. 6) of the

Convention that the Supreme Court rejected part of his appeal in

cassation under Article 101a of the Judicial Organisation Act without

giving further reasons.

     Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

     "1.   In the determination of ... any criminal charge against

     him, everyone is entitled to a fair ... hearing ... by a ...

     tribunal...."

     The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention obliges the courts to give reasons for their judgments, but

cannot be understood as requiring a detailed answer to every argument

(cf. Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994,

Series A no. 303-A, p. 12, para. 29; and Hiro Balani v. Spain judgment

of 9 December 1994, Series A no. 303-B, p. 29, para. 27).

     The Commission further recalls that when a State provides for an

appeal to a Supreme Court, it may prescribe the conditions and

procedure (cf. No. 12972/87, Dec. 9.11.87, D.R. 54 p. 207) and that

Article 6 (Art. 6) of the Convention does not require that a decision

whereby an appeal tribunal, basing itself on a specific legal

provision, rejects an appeal as having no chance of success be

accompanied by detailed reasons (cf. No. 8769/79, Dec. 16.7.81, D.R.

25 p. 240).

     The Commission notes that the Supreme Court, referring to Article

101a of the Judicial Organisation Act authorising this procedure,

rejected part of the applicant's complaints in cassation, which is

limited to points of law, as not prompting a determination of legal

issues in the interest of legal unity and legal development. The

Commission has previously found that this procedure cannot be regarded

as contrary to the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention (cf. No. 30059/96, Dec. 26.2.97, unpublished). The

Commission finds no reason to reach a different finding in the present

case.

     Insofar as the applicant can be understood as complaining under

Article 6 (Art. 6) of the Convention about the way in which the

evidence in his case was taken, the Commission recalls that it may

examine how evidence has been adduced, but not how it has been assessed

by the court, unless there has been gross unfairness or arbitrariness

(cf. No. 22909/93, Dec. 6.9.95, D.R. 82, p. 25).

     The Commission notes that in the present case, the Court of

Appeal explicitly considered the submissions by the defence as regards

the possibilities to tamper with the sealed samples taken on the

applicant's premises, but on the basis of other means of evidence,

concluded that it had not been established that the samples taken in

the present case had in fact been tampered with.

     The Commission cannot find that the conclusions of the Court of

Appeal on this particular point can be regarded as grossly unfair or

arbitrary.

     Consequently, also noting that the applicant has been convicted

following adversarial proceedings in which he has been given ample

opportunity to state his case and to submit whatever he found relevant,

the Commission cannot find that the proceedings at issue fell short of

the requirements of Article 6 (Art. 6) of the Convention as to the

fairness of criminal proceedings.

     It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

 

Full & Egal Universal Law Academy